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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Fourth Amendment cases,
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--Electronic Communications Privacy Act (2012)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)). -
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud -
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848) -
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984). -
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961). -
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987). -
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). -
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765) -
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) -
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). -
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987) -
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967) -
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) -
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989) -
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards -
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp] -
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
---Pepé Le Pew "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Exclusionary rule
CA10: “[N]o exclusionary rule for evidence gained through … entrapment”
“[T]here is no exclusionary rule for evidence gained through conduct later deemed to be entrapment.” United States v. Christian, 754 Fed. Appx. 747, 750 (10th Cir. 2018). United States v. Christian, 2022 U.S. App. LEXIS 12255 (10th Cir. May 6, … Continue reading
OH12: Any error in SW return has no effect on search
Any error in the search warrant return does not affect the search itself. Therefore, it can’t form a basis for suppression. Defendant also disclaimed any interest in the property at the time of the search. State v. McClendon, 2022-Ohio-1441, 2022 … Continue reading
Cal.: Exclusionary rule does not apply in child dependency litigation
The exclusionary rule does not apply in child dependency litigation. In re Christopher L., 2022 Cal. LEXIS 2313 (Apr. 25, 2022) (recognizing rule). “Hecke is correct that Detective Compton did not provide details of BSC’s criminal history or a description … Continue reading
D.Me.: Settled law at the time means exclusionary rule not applied, even if the law was later changing
Officers relied on settled law in this circuit that the search incident was valid. Maybe it wouldn’t be later, but it was at the time. The exclusionary rule should not be applied under Davis. “Given the similarity of these two … Continue reading
AF: Despite search authorization not permitting this search and GFE not applying, exclusionary rule should not apply; no deterrence
The search authorization for this service member’s cell phone was overbroad and failed to include text messages which were at issue. This failed Leon’s good faith exception: “We disagree, and find the fourth Leon exception clearly applies in this case—that … Continue reading
N.-M.: In applying cost-benefits analysis of exclusionary rule, this was more than mere negligence and exclusion was necessary
In a military prosecution for adultery, the military judge found the search of defendant’s cell phone unreasonable and a violation of the Fourth Amendment but refused to suppress in its cost-benefits analysis. The court of appeals disagreed and found the … Continue reading
D.Nev.: Traffic stop devolving into investigation of violation of parole conditions was without RS
“The Court finds that Chronister unlawfully prolonged the traffic stop by pursuing an investigation into whether or not Lewis was in violation of his parole conditions.” “The Court finds that Chronister did not believe at the time of the traffic … Continue reading
CA4: Exclusionary rule does not apply to violations of Posse Comitatus Act
An investigation by the DoD Inspector General is an exception to the Posse Comitatus Act. Besides, a violation of the Posse Comitatus Act is not subject to the exclusionary rule. United States v. Vaxima, Inc., 2022 U.S. App. LEXIS 5315 … Continue reading
AL adopts new crime exception to exclusionary rule
When being arrested, defendant pulled away from officers in his room and dove for his bed and reached under a pillow. Officers thought he was going for a gun, and a melee ensued. He was charged with assault and resisting … Continue reading
DC: Even if def was illegally arrested, his identification is not suppressed
Even if defendant was illegally arrested, his identification is not suppressed. Hood v. United States, 2022 D.C. App. LEXIS 57 (Feb. 10, 2022):
CA3: Exclusionary rule doesn’t apply to sentencing unless enhancing sentence was reason for the search
The exclusionary rule doesn’t apply to sentencing factors unless the illegal search was intended to enhance the sentence. United States v. Torres, 926 F.2d 321 (3d Cir. 1991). “[W]e refused to follow Verdugo in Torres because the facts in Torres … Continue reading
MS: The exclusionary rule doesn’t apply in civil tort cases for wrongful conviction
“Sedric Sutton seeks compensation under Mississippi Code Sections 11-44-1 to -15 (Rev. 2019), Compensation to Victims of Wrongful Conviction and Imprisonment, after his conviction of possession of a controlled substance with intent to distribute was vacated by this Court.” The … Continue reading
TX: Exclusionary rule is statutory and harmless error analysis required
The Texas exclusionary rule is statutory and not a constitutional remedy since 1922. Thus, harmless error analysis is required, and the case remanded for that. Holder v. State, 2022 Tex. Crim. App. LEXIS 72 (Feb. 2, 2022). “Accordingly, under the … Continue reading
CA1: DoJ MMJ appropriations rider does not implicate the exclusionary rule
The DoJ appropriations rider* that limits spending any federal funds of medical marijuana-type cases does not permit the court of appeals enjoining the prosecution by interlocutory appeal. That does not implicate the grand jury’s power to consider the case, nor … Continue reading
CA11: FBI’s negligence in taking six months to search def’s truck and computers did not require suppression
“Bruce Nicholson, an Alabama man convicted of federal child sex crimes and sentenced to life in prison, challenges his conviction on direct appeal. The main question in this criminal appeal is, as it often is, whether a criminal should ‘go … Continue reading
CA1: Def preserved Rodriguez argument without citing it
Defendant preserved his Rodriguez argument by stating that the stop was continued without reasonable suspicion but not citing the case. Nevertheless, he loses on the merits. United States v. Reyes, 2022 U.S. App. LEXIS 1417 (1st Cir. Jan. 19, 2022). … Continue reading
CA7: Exclusionary rule doesn’t apply in civil cases
Plaintiff was arrested for possession of brass knuckles. The state court suppressed, so the state’s attorney nolle prossed. He sued under 1983. There was probable cause to arrest, and the exclusionary rule [even if the state court was right, which … Continue reading
W.D.Ky.: Arrest warrant doesn’t require executing officer to check into PC for it
If there is an arrest warrant, the executing officer doesn’t have to look behind it to determine its validity. Other alleged probable cause for defendant’s stop is immaterial. United States v. Cox, 2022 U.S. Dist. LEXIS 7551 (W.D.Ky. Jan. 14, … Continue reading
MT: Probation search was justified; its overall reasonableness didn’t warrant suppression here
There was reasonable suspicion for the probation search of defendant’s house based on his wife’s report that he was using meth again. The supervisory PO authorized a warrantless entry if necessary. The record is limited as to the reasonableness of … Continue reading